Real Property | The Better Chancery Practice Blog

Tacking Adverse Possession

June 4, 2015 § 3 Comments

The case of Rester and Davis v. Greenleaf Resources, Inc., handed down by the COA April 7, 2015, is instructive for an aspect of adverse possession that can be overlooked.

In that case, the chancellor had ruled that Sylvia Rester and L.B. Davis had failed to meet their burden to prove the elements of adverse possession of some 19.5 acres of land by clear and convincing evidence. The COA held that the chancellor did correctly apply the law to the facts of the case, but erred by considering only the period of time when the property was owned by Greenleaf. The COA opinion, by Judge Irving, states:

¶16. After reviewing the record, we find that the trial court correctly considered the elements of adverse possession; however, it erred because it only focused on the period of time Greenleaf held title to the land. Specifically, the trial court erred when it held that “Greenleaf would have no way of knowing the Plaintiffs claimed ownership.” We point out that Greenleaf did not hold title to the land until 2004, when it purchased the land from the Crosbys. Further inquiry is crucial in determining whether the Davis family adversely possessed the disputed property at any point prior to Greenleaf’s purchase of the land.

¶17. There are several ten-year spans of time, an element of adverse possession, that need to be considered, which the trial court’s findings are silent on. Such a span begins with L.B.’s birth on the disputed property. There is testimony that the family maintained control by renting out the log cabin in their absence for a period of time. In addition, there was testimony that L.B. had worked on the fence in 1939. There is uncontradicted testimony from Herbert, who managed the property for over twenty years, that the property was on a squatters list, and that there were painted lines that were not crossed. In addition, he recalled that there was a fence, and that crops had been planted on the disputed property. Herbert’s testimony is corroborated by L.B.’s testimony. James also testified to seeing the painted lines, which Herbert described and stated he did not cross in light of the fact that the land was on the squatters list. Several other witnesses testified about crops being grown by the Davises on the disputed property and the Davises’ recreational use of the land.

¶18. We find that there was sufficient evidence produced to warrant further inquiry for the period of time prior to Greenleaf’s purchase of the disputed land. If at any point, the Davises had adversely possessed the property prior to Greenleaf’s purchase, it follows that the title that Greenleaf received could not include the disputed property, notwithstanding the fact that it may lie within the calls of its deed. To be clear, nothing in this opinion should be interpreted as holding or finding that the evidence is sufficient or insufficient to show that the Davises adversely possessed the property prior to the point in time when Greenleaf purchased it. We simply hold that the trial court erred in limiting its focus to the period of time after the date of Greenleaf’s purchase.

This holding is dictated by MCA 15-1-13(1), which sets out the period of adverse possession, and reads, in part:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title …

In other words: (A) any person or persons in the preceding chain of title who achieved adverse possession passes good title to the subsequent title holders; and (B) where there is privity between a party and his predecessor in title, the party is entitled to “tack” his possession to his predecessor’s so as to have ten years’ possession, despite the fact that the party has not himself been in possession ten years. Ricketts v. Simmons, 44 So.2d 537, 538 (Miss. 1950). Either situation requires the court to look at the facts of the predecessors in title, which means that it is incumbent on counsel to develop that proof at trial as was done in the trial of the Rester case. If you don’t put it in the record, the court can not consider it, and you can not prevail on appeal.

Who Gets to Decide Fair Market Value?

May 19, 2015 § 2 Comments

Gary Marter and his wife Celeste were divorced, and Gary appealed complaining that the chancellor erred when he assigned a value of $110,000 to 120 acres of jointly-owned real property. The COA found that the chancellor had not adequately explained how he arrived at the figure, and so remanded the case in Marter v. Marter, 95 So.3d 733 (Miss. App. 2012).

On remand the chancellor conducted a hearing, and both sides had the opportunity to present evidence. The court heard from two appraisers hired by Gary, and from both of the parties. The chancellor then rendered an opinion concluding that the property was worth $110,000. Gary appealed again.

In Marter v. Marter, handed down by the COA May 12, 2015, the COA, by Judge Fair, affirmed. The main issue I want to address is what the chancellor is to do when confronted by conflicting and inconclusive proof of fair market value. Here’s what Judge Lee said in his opinion:

¶12. Gary first argues that the chancellor erred in valuing the 120 acres at $110,000 because neither party placed that specific value on the property . But he presents no authority supporting this proposition. Instead, the chancellor is the ultimate finder of fact, and as the finder of fact he is entitled to accept or reject the testimony of witnesses, in whole or in part, and to give the various testimony the weight it deserves; the chancellor’s findings can be disturbed only if clearly wrong or derived from the application of an erroneous legal standard. Mize v. Westbrook Constr. Co. of Oxford LLC, 146 So. 3d 344, 348 (¶6) (Miss. 2014). Our courts have repeatedly recognized that the chancellor is entitled to make an independent judgment of a property’s value, especially where the estimates of the parties vary widely. In McKnight v. McKnight, 951 So. 2d 594, 596 (¶¶7, 10) (Miss. Ct. App. 2007), this Court affirmed a valuation where the chancellor had apparently just averaged the two proposed values, because the evidence in the record supported the conclusion that the low estimates were too low and the high estimates were too high. We reached the same result in Williams v. Williams, 129 So. 3d 233, 241 (¶32) (Miss. Ct. App. 2013). “If the court finds all of the competing values to be inaccurate, it may make its own independent valuation.” Brett R. Turner, 2 Equitable Distribution of Property § 7:12 (3d ed. 2005).

¶13. Gary next contends that the chancellor erred in considering the tax assessor’s appraisal of the property, which was noted to be approximately $49,000. The chancellor took notice of the tax appraiser’s valuation on his own initiative, but without objection from either party. Gary cites to Watson v. Watson, 882 So. 2d 95, 106-07 (¶¶55-57) (Miss. 2004), where the supreme court reversed a valuation determined by simply adding 15% to the tax roll assessment. The chancellor derived this formula from his own experience, and he applied it despite all the other evidence in the record supporting a higher value. But, in today’s case, the chancellor did not apply a rigid formula; he merely noted that he had found the value of the 120 acres to be significantly in excess of the tax assessment. The chancellor’s observation does not demonstrate a defect in his reasoning.

¶14. Finally, Gary argues that the chancellor committed reversible error when he failed to consider the value of the timber separately from the land. In the judgment on remand, the chancellor expressly noted that there was timber on the property, but he treated it as a fixture of the land and did not assign it a separate value. Gary offers no authority requiring land and timber to be valued separately; he only supports this claim by saying that “[Celeste] has never presented any evidence to contradict [his] contention.” Gary suggests that the chancellor could not disregard the testimony of Gary’s timber appraiser, but that appraisal was done years after the divorce, and there was greatly varying testimony as to the value of the timber. Celeste and the tax assessor valued the land, including the trees, at approximately $50,000. Gary points out that both of these valuations have their flaws, which the chancellor was very much aware of. But Gary himself originally valued the land at $55,000 plus the unspecified value of 28 acres of trees. The timber appraisal he now relies upon was conducted several years after the divorce and valued 108 acres of timber. “Expert opinions are not obligatory or binding on triers of fact but are advisory in nature.” Downs v. Ackerman, 115 So. 3d 785, 791 (¶18) (Miss. 2013). In situations like this, “where there is reason to doubt the trustworthiness of the appraisal,” the “chancellor is justified in rejecting the values an appraiser places.” A & L Inc. v. Grantham, 747 So. 2d 832, 842 (¶44) (Miss. 1999).

* * *

¶15. The chancellor has twice found himself in circumstances such as those described by this Court in the oft-cited case of Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999), in which this Court said:

It is our conclusion that the chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.

¶16. We conclude that, as in Dunaway, the chancellor did the best he could with the evidence presented to him. Id. at 118 (¶14). As this Court will not disturb a chancellor’s findings unless manifestly wrong or clearly erroneous, our standard of review requires that the judgment be affirmed. Johnson v. Johnson, 650 So. 2d 1281, 1285 (Miss. 1994) (citation omitted).

There’s really nothing more to add to that.

Economics of the Do-It-Yourself Lawsuit

April 9, 2015 § 1 Comment

Nellie Pruitt died intestate in 1974. Her 24.12 acres of land was surveyed by Lambert, divided into five equal tracts, and deeded to Nellie’s five daughters, each of whom executed deeds that were recorded in the land records of Tishomingo County. In 2007, one of the daughters had the property surveyed by Guice, who discovered several errors in the deed descriptions. Freddie Dobbs, the heir of one of the original sisters, disagreed that there was any error in the descriptions, and obtained his own survey from Ledgewood that he claimed to support his position. Acting on his belief that the original description was correct, Dobbs bulldozed some trees, cleared land, and tore down a fence.

The other landowners (Crawford, et al.) filed suit against Dobbs in chancery court to reform the deeds, remove clouds, and quiet and confirm title. The complaint also sought damages, injunctive relief, expert witness fees, and attorney’s fees.

Dobbs represented himself.

Crawford filed a motion for partial summary judgment, and a hearing was held in which the judge apparently permitted testimony. Crawford put into evidence Guice’s survey with his affidavit, a deraignment of title, and the affidavit of the sole surviving Pruitt sister that the intent of the original partition was that each sister would receive an equal plot.

In response, Dobbs testified (apparently without objection) that Ledgewood had told him that the property lines were correct. He also testified (apparently without objection) that his mother had told him that she believed she owned more of her mother’s property, but did not want a family feud. He did not offer Ledgewood’s survey into evidence, and he offered no counteraffidavits, as required in R56(e).

The chancellor granted partial summary judgment reforming the deeds and quieting and confirming title according to the Guice survey.

A hearing was then held on the issues of injunctive relief, damages, court costs, expert witness fees, and attorney fees. Crawford et al. were represented by counsel. Dobbs, again, appeared pro se.

The Crawford plaintiffs put on detailed testimony and introduced documentary evidence to support their claims. In his defense, Dobbs again asserted that he had relied on Ledgewood. In ruling (predictably) for the plaintiffs, the chancellor observed that:

“Mr. Ledgewood did not testify and his survey was not offered nor admitted into evidence. There is no evidence whatsoever to support the explanation of the Defendant, Freddie Dobbs.”

The chancellor entered a judgment against Dobbs for nominal and actual damages totaling $17,746.20, for attorney’s fees in the sum of $13,000, and for expert witness fees in the amount of $3,250, for a grand total of $33,996.20. Each judgment was to bear interest at the rate of 8%.

Dobbs appealed, yet again representing himself.

On March 31, 2015, the COA handed down its decision in Dobbs v. Crawford, et al., in which Judge Irving observed for the unanimous court (Judge James not participating) that Dobbs ” … lists various grievances, but offers little argument and law.” Dobbs’ cornerstone contention was that, at the summary judgment hearing, he was “waiting for his chance to tell his side,” and that he did not know he was required to provide counteraffidavits with expert testimony. In other words, his lawyer (himself) was ignorant of the law. As you can guess, the COA did not buy that or any of his other contentions, and affirmed the trial court.

In case you’re not keeping count of Dobbs’ success as his own lawyer: Strike One, partial summary judgment hearing; Strike Two, damages hearing; and Strike Three, appeal. He’s Out.

So, let’s assess the wreckage:

I am going to assume that a moderately experienced attorney would have settled this case in its earliest stages (some other defendants did exactly that) for far less than was ultimately assessed against Dobbs.
No doubt an early settlement would have drastically reduced attorney’s fees. I note that there were two attorneys in the case, one of whom had fees of $10,000, and the other $3,000. My guess is that the former was the trial attorney, and the latter was the lawyer who did the title work and perhaps filed the initial pleadings in the unsuccessful hope that Dobbs would come to terms. If that’s so, then Dobbs cost himself $10,000 at least right there.
Had he retained counsel early enough, that attorney might have been able to dissuade Dobbs from doing the bulldozer work on the plaintiffs’ property that ultimately cost him $17,746.20.
If he had an attorney at the summary judgment proceeding, the Ledgewood survey (if it really existed) and some other supportive evidence would have been introduced that could have averted summary judgment and may have propelled the parties into settlement negotiations that would have saved Dobbs some serious money.
I am willing to bet that Dobbs’ attorney’s fees would have been in the neighborhood of a few hundred dollars had he hired a lawyer when he got the Ledgewood survey, and a few thousand afterward. At any event, his total fees and judgment with assistance of a lawyer would not have approached $33,000, in my opinion.

“Penny wise and pound foolish” is one way to put it.

Findings on a Rule 60 Motion

December 17, 2014 § 4 Comments

Aside from the remarkable fact that the December 9, 2014, COA case of Pride v. Pride involved twelve (12) pro se appellees, the decision also makes the notable point that findings of fact and conclusions of law are not necessarily required in the court’s ruling on a R60 motion.

This is a partition case involving 150 acres, more or less, in which siblings disagreed over the division. The chancellor ordered that a house and one acre be sold at auction, and six years later two brothers filed a R60 motion for relief from judgment, which the chancellor denied. The brothers also asked the court for specific findings of fact and conclusions of law, per R52(a), which the chancellor also denied. The brothers appealed.

The order for sale of the home had been the subject of a previous appeal, which was found to be without merit in Pride v. Pride, 60 So.3d 208 (Miss. App. 2011). The COA characterized the six-year after-the-fact R60 motion in this case as ” … nothing more than his unsupported assertion …” that he (one of the brothers, William) was entitled to some relief. He did not invoke any of the legitimate bases of R60, and he offered no evidence to support his claims. The court found no merit to his R60 argument.

As for his claim that the chancellor should have made specific findings of fact and conclusions of law, Judge Roberts, for the majority, said this:

¶10. Next, William claims that the chancellor erred when he did not provide written findings of fact and conclusions of law related to the decision to deny the Rule 60(b) motion. Rule 52(a) of the Mississippi Rules of Civil Procedure provides that “[i]n all actions tried upon the facts without a jury[,] the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” If a party requests findings of fact and conclusions of law, and the trial court does not enter them, an “appellate court must consider the effect of the trial court’s missed responsibility, and overwhelming evidence may be required as a condition for affirmance.” Bodne v. King, 835 So. 2d 52, 57 (¶15) (Miss. 2003). “Whe[n] . . . a case is hotly contested and the facts [are] greatly in dispute[,] and whe[n] there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion.” Tricon Metals & Servs. Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987). However, a trial court is only obligated to enter requested findings of fact when an action has been “tried upon the facts without a jury.” Harmon v. Regions Bank, 961 So. 2d 693, 700 (¶24) (Miss. 2007).

¶11. The chancellor was not required to view the allegations in William’s Rule 60(b) motion as though they were true. William’s Rule 60(b) motion was not an action “tried upon the facts,” because it did not include anything but allegations, and no facts were ever presented. William fails to explain how the chancellor could possibly find any facts after he failed to present any. And the chancellor’s decision to deny William’s Rule 60(b) motion did not result in the entry of a judgment. Therefore, the chancellor was justified in summarily denying William’s request for written findings of fact and conclusions of law. It follows that we find that the chancellor did not abuse his discretion, and there is no merit to this issue.

The axis upon which the COA’s decision turned was the absence of any evidence upon which the court was asked to rule. In essence, the brother(s) were asking the court for a do-over on their already-lost position.

One way to approach the rules is through a literal reading and rigid application: the rule says it, so do it. The better approach, to me, is to consider what is to be accomplished and why. Here, findings of fact and conclusions of law would be nothing more than a rehash of what had been done before, since the brothers presented nothing new. It would have been an empty exercise that might have planted the possibility of error in the record, which may be just what they had in mind to further delay this already-lengthy litigation. As MRCP 1 says, “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.”

In the COA’s recitation of the case’s history, the quotes from Pride, supra, repeatedly refer to the William’s 2006 motion for a JNOV (directed verdict) as to the court’s order for a partition in kind. <SIGH> It’s a lamentable subject I posted about here recently.

The Bad Earth

September 29, 2014 § 3 Comments

Slander of title is one of those rare actions that one sees a couple of times in a career. The recent MSSC case, Mize v. Westbrook Construction, et al., handed down September 4, 2014, illustrates, perhaps, why that is.

Jerry Mize purchased 56 acres of land. The seller told him that, although most of the tract sat north of County Road (CR) 206, a small part of it lay south of the road. Westbrook and the other defendants (Westbrook), however, took the position that their deeds gave them title to all the property south of the road.

Mize then employed an engineering firm to survey the property and prepare a corrected deed in an effort to resolve the difference. The corrected deed was also necessary because the original deed had a description that did not close. The survey confirmed Mize’s position, but Westbrook refused to recognize it, relying instead on their own deeds that had been prepared by another surveying firm in 2004, which set the boundary in the center line of CR 206, not south of it.

Mize went ahead and recorded the corrected deed and filed suit to quiet and confirm title. Westbrook answered and counterclaimed to quiet and confirm their own title, and for slander of their titles.

After a trial, the chancellor accepted Westbrook’s survey and found that, even if Mize’s property did extend south of CR 206, Westbrook had obtained title by adverse possession. The trial court also found for Westbrook on the slander-of-title claim, and awarded damages of $32,530.05. Mize appealed. The COA affirmed, and the MSSC granted cert.

Justice Randolph, for a unanimous court, laid out the framework for a slander-of-title suit:

¶7. To succeed in an action for slander of title, a claimant must show that another has falsely and maliciously published statements that disparage or bring into question the claimant’s right of title to the property, thereby causing special damage to the claimant. Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393, 396 (1951). The slander may consist of a writing, a printing, or words of mouth, but they will provide grounds for a cause of action only if the statements have been made falsely and maliciously. Id. Whatever the statement, however, in order for it to form the basis of a right of action, it must have been made not only falsely but maliciously. Id. (citations omitted).

¶8. Malice, however, may be inferred from one’s actions. Phelps v. Clinkscales, 247 So.2d 819, 821 (Miss. 1971). “The law determines malice by external standards; a process of drawing inferences by applying common knowledge and human experience to a person’s statements, acts, and the surrounding circumstances.” Id. As such, the chancellor’s finding of malice should be given great deference and can be reversed only if it is clearly erroneous. Mason v. Southern Mortgage Co., 828 So. 2d 735, 739 (Miss. 2002). Here, the chancellor found malice in Mize’s actions; however the record is silent as to whether Mize knowingly made a false publication.

The court then turned its attention to the filing of the corrected deed. Was that sufficient to support a finding of malice?

¶9. This Court has held that the mere filing of a corrected deed is not sufficient to show malicious intent. Wise v. Scott, 495 So. 2d 16, 21 (Miss. 1986). Wise involved a dispute of mineral rights between parties following a conveyance of a mineral deed. Id. at 20. After realizing that there had been a drafting error in the original deed that had a material effect on the parties’ property rights, the defendant sought to correct the error through a corrected deed. Id. at 21. The plaintiffs successfully sued the defendant for slander of title in chancery court. Id. On appeal, this Court reversed the chancery court, finding that malice cannot be shown by the mere filing of a corrected deed, if the party who filed the corrected deed had a bona fide belief of ownership. Id.

Since Mize had a bona fide belief based on his sellers’ representations, and he had reason to file a corrected deed to remedy its failure to close, it was error for the trial court to find malice in the filing of the corrected instrument in the absence of proof of “falsity, guile, or trickery.”

And what about the filing and pursuit of the suit by Mize? Did those actions constitute malice? The court answered, “No” because communications published in the course of a lawsuit are absolutely privileged. And, as for continuation of the litigation after the seller had given an affidavit that she never intended to sell any property owned by Westbrook, the MSSC said that a party who acts under a reasonable belief of title can not be held to have acted maliciously. Since Mize had his survey and corrected deed, his acts were based on a reasonable belief.

The court reversed the chancellor’s finding of slander of title and the award of damages.

Im-Mobile Home

July 7, 2014 § Leave a comment

The COA’s June 24, 2014, decision in O’Neal v. Ketchum is notable primarily because it deals with an unmarried couple and their joint property issues.

But the case also addresses an issue that arises with some frequency in real property litigation, divorces, and probate matters: when is a mobile home considered to be real property?

In O’Neal, the appellant argued that the chancellor erred in concluding that the mobile home was not a fixture because, the chancellor held, neither party had proved that it was.

The COA affirmed. Judge Lee’s opinion spells it what it takes to establish that a mobile home is a fixture:

¶14. For a mobile home to be considered real property, the specific requirements of Mississippi Code Annotated section 27-53-15 (Rev. 2010) must be met. Under section 27-53-15, first, the mobile home’s wheels and axles must be removed, and the home must be affixed to a permanent foundation by anchoring and blocking it to comply with the rules and procedures of the Commissioner of Insurance of the State of Mississippi. Then, the mobile home must be entered on the land rolls of the county tax assessor, and it must be taxed as real property from that date. Lastly, the county tax assessor must issue a certificate certifying that the mobile home is real property, and the tax assessor must file the certificate in the land records. For a security interest to be perfected, the mobile home’s description must be included in the deed of trust. See Deutsche Bank Nat’l Trust Co. v. Brechtel, 81 So. 3d 277, 279 (¶8) (Miss. Ct. App. 2012).

¶15. At trial, no evidence was presented that the mobile home’s wheels and axles had been removed or that it had been attached to a permanent foundation. Additionally, no evidence was presented that a certification of the mobile home as real property had been entered with the county tax assessor. The deed encompassed the land “together with all improvements and appurtenances now or hereafter erected on [it], and all fixtures of any and every description[,]” but the deed made no mention of the mobile home.

¶16. Neither party asserted that the mobile home had become a fixture on the property. The chancellor determined that because no evidence was presented that the mobile home’s wheels were removed, that the home was attached to a foundation or placed on blocks, or that the home was assessed as real property for tax purposes, the mobile home had not become a fixture. The chancellor’s findings were supported by substantial evidence. This issue is without merit.

Waiting for a Sign

June 2, 2014 § Leave a comment

Consider this description of what Joel Misita argued was a sign …

“It is a three-sided structure with a floor and a corrugated metal roof. It is constructed of metal and wood. It is triangular in shape and connects to three poles that form a frame, with two wheels. Each side is eighteen feet in length.The height is approximately fifteen feet, and the structure is capable of being raised higher. Exterior steps and a landing are attached to the back side. Two sides of the structure serve as illuminated signage. Each of those two sides contains four exterior lights that extend outward from the roofline a few feet and hang down, resembling street lamps. On the remaining side, the back side, a singlelight illuminates the door and exterior steps used for entry. The door may be locked by key and has glass window panes. An aerial power line provides electricity to the interior of the structure, in addition to the outside lighting. The interior is approximately 140 square feet. It is a fully-enclosed room, complete with a floor and a roof. The room is air-conditioned and serves as a showroom for some of Misita’s works. Although wheels are attached, the structure has not been moved since Misita placed it in its current position, by fitting and cross-bolting the frame into permanently attached receptors set by concrete into the ground.”

He took that position because he had constructed the thing on a three-acre parcel that was subject to a restrictive covnenant that “No structures are to be erected on the property.” If it’s a sign, it’s not a structure, right? His neighbors, the Conns, disagreed and filed suit in chancery court.

The chancellor ruled that the edifice was, indeed, a structure in violation of the restrictive covenant, and ordered Joel to take it down. Joel appealed.

The COA affirmed the chancellor’s authority to enforce the restrictive covenant, but reversed the finding that it was a structure, finding instead that it was a sign, as Joel maintained. The MSSC granted the Conns’ petition for cert.

In the case of Misita v. Conn, handed down May 15, 2014, the MSSC reversed the COA on whether the thing was a structure, and affirmed and reinstated the chancellor’s ruling. After concluding that the restrictions do run with the land and are enforceable between these parties, the court turned to the sign-or-structure issue:

¶10. … [W]e now analyze whether the object of this dispute is a structure or not. “Generally, courts do not look with favor on restrictive covenants.” Kemp v. Lake Serene Prop. Owners Ass’n, Inc., 256 So. 2d 924, 926 (Miss. 1971). “Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is usually most strongly against the person seeking the restriction and in favor of the person being restricted.” Id. “An important corollary rule, however, is that the clear and unambiguous wording of protective covenants will not be disregarded merely because a use is prohibited or restricted.” Andrews v. Lake Serene Prop. Owners Ass’n, 434 So. 2d 1328, 1331 (Miss. 1983). “If the intent to prohibit or restrict be expressed in clear and unambiguous wording, enforcement is available in the courts of this state.” Id. “The language of restrictive covenants is to be read ‘in its ordinary sense,’ considering the entire document as well as the circumstances surrounding its formulation to ascertain its meaning, purpose and intents.” Stokes [v. Bd. of Dir. of La Cav Imp. Co.], 654 So.2d [524,] at 527 [(Miss. 1995)].

¶11. Both the circumstances and the plain language of the deed evidence that the word “structure” is clear and unambiguous and has broader application than sixty-two-feet-high buildings. “A reviewing court is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Royer Homes, 857 So. 2d at 752 (quoting Turner v. Terry, 799 So. 2d 25, 32 (Miss. 2001)). Therefore, the language of the restriction should be read in its “ordinary sense.”

¶12. We find that Misita’s “sign” is a “structure.” It is a one-room structure, complete with roof, floor, air conditioning, lights, door with window panes, and a staircase, inter alia. While not a bridge or dam, it is akin to a building or edifice, and is clearly “something built or constructed. Despite its adaptability for transport, it had not been moved since Misita erected it. The chancellor, who physically inspected the structure, found that it “is anchored to pipes which are sunk in the ground and Misita further secured the pipes by concrete.”

¶13. Black’s Law Dictionary defines a structure as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Black’s Law Dictionary 1464 (8th ed. 2004). In Sullivan v. Kolb,the Court of Appeals defined “structure” as “[s]omething made up of a number of parts that are held or put together in a particular way. —The way in which parts are arranged or put together to form a whole; makeup.—The interrelation or arrangement of parts in a complex entity.—Something constructed.” Sullivan v. Kolb, 742 So. 2d 771, 777 (Miss. Ct. App. 1999) (citing The American Heritage College Dictionary (3d ed. 1993)). It is a structure under both Black’s and Sullivan, as it is “composed of parts purposely joined together.” We find no error in the chancellor’s finding.

The court also pointed out in Fn 7 that the COA’s conclusion that the object was not a structure because it was not a building, dam, or bridge was not “consistent with its common usage, for there are many structures that do no qualify as a building, dam, or bridge, e.g., the Washington Monument, the Statue of Liberty, or the Great Sphinx, inter alia.”

This case is a nice complement to Rawaid d\b\a B.P. Quickmart v. Murguia & Arias Grocery, LLC, 124 So. 3d 118, 121 (Miss. App. 2013), which involved a dispute over interpretation of a restrictive covenant between store owners on adjoining property. Rawaid charged that the Mexican grocery next door violated a restrictive covenant against locating a convenience store on the property. The COA affirmed the chancellor’s conclusion that it did not. The opinion quotes Chancellor Malski’s sage finding that if a customer “ … were driving by these two stores and wanted to buy convenience type items—chips, soft drinks, or gas—even though these items were available at M&A Grocery, [he] would surely go to BP Quickmart. If [he] wanted to buy a piñata, . . . [he] would go to M&A Grocery.” But what about an enchilada to go?

Rock, Paper, Scissors … Will, Pre-Nup, Quitclaim Deed

May 20, 2014 § 7 Comments

If I remember correctly, rock beats scissors, paper beats rock, and scissors beats paper.

But as among a will, a pre-nuptial agreement, and a quitclaim deed, which beats what? That was the question posed in Estate of Jones: Dixon v. Jones, decided by the COA on April 29, 2014.

Johnnie Lee Jones, the decedent, and his soon-to-be wife, Annie Ruth, entered into a prenuptial agreement on March 19, 1997. The agreement provided that, upon Johnnie Lee’s death, the home titled in his sole name was to go to Bonnie Jones Dixon, his daughter from a prior relationship. The home was located at 171 Vine Street in Jackson.

After their marriage, Johnnie and Annie Ruth lived together in the Vine Street residence.

On September 16, 1998, Johnnie executed a will leaving the Vine Street home to Annie Ruth for her life, at which point the property was devised to his sister, Eliza Mae Webster. The will included the customary language that it revoked ” any and all previous testaments.”

Beginning in 2001, Johnnie and Annie Ruth claimed the property as their homestead.

On December 14, 2005, Johnnie executed a quitclaim deed conveying the Vine Street property to himself and his daughter Bonnie as joint tenants with right of survivorship. Annie did not sign the deed, although she and Johnnie were still married at the time.

Johnnie died on January 22, 2011, and Annie Ruth, who continued to live in the Vine Street home, filed pleadings on November 29, 2011, to admit Johnnie’s will to probate. Before an order was entered, however, Bonnie filed suit for declaratory judgment that she was the rightful owner of the property, and for damages. Bonnie relied on both the pre-nuptial agreement and the quitclaim deed. On January 17, 2012, the chancellor admitted the will to probate.

On November 29, 2012, the chancellor denied the declaratory relief. The judge ruled that the will revoked the pre-nuptial agreement, and that the deed was statutorily void because it conveyed homestead and did not bear Annie Ruth’s signature. Bonnie appealed.

The COA rejected Bonnie’s argument that the word “testaments” as used in the revocation language of the will referred solely to instruments disposing of personal property only, and not real property. The COA held that the use of the term “testaments” was interchangeable with “will,” and that MCA 91-5-3 expressly provides that a devise may be revoked by a testator’s subsequent will. The court concluded that the will revoked the pre-nuptial agreement. Interestingly, Bonnie’s attorney cited Wikipedia in support of her argument, and the COA cited www.yourdictionary in reaching its conclusion. Modern times.

As for the quitclaim deed, the court agreed with the chancellor that the quitclaim deed was void. The court cited MCA 89-1-29: “A conveyance, mortgage, deed of trust or other incumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner is married and living with the spouse or by an attorney in fact for the spouse.”

The court also cited this language from Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):

Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation. (emphasis added)

Our statutes and the case law applying them are quite protective of spouses’ homestead rights. This case is one in a long line of cases that lean in that protective direction.

The other lesson to be learned here is that a subsequently-executed will that includes appropriate revocation language will revoke any and all previous testamentary documents, including a pre-nuptial agreement.

A Threshhold Issue in Adverse Possession

April 3, 2014 § 4 Comments

You’ve read here before about the elements of adverse possession, every one of which must be proven by clear and convincing evidence before the person claiming title by adverse possession may prevail.

One of those elements is that the possession must be hostile. That is, it must not be with the assent of the title owner. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So.3d 846, 849 (¶ 11) (Miss. App. 2012).

That is the principle that tripped up Tim Hoover in the claim of adverse possession he asserted against George and Nelta Callen. Tim’s brother, Mayo, had gotten permission to install some septic tank field lines on a portion of the Callens’ property 12-15 years before the litigation. He also had their permission to use the same property to pasture horses and store some vehicles. Mayo had asked to purchase the land for those purposes, but the Callens would not sell, instead agreeing to let Mayo use it. George Callen testified that Mayo told him that, if the filed lines ever caused George any trouble he would remove them.

Mayo died, and Tim moved onto the property. Problems arose with the field lines, and George approached Tim to inquire what he would do about it. Tim reacted angrily and ordered George off of his property. When the field lines remained unrepaired, George dug them up and laid them on Tim’s property. He also constructed a fence on the property line. Tim complained that the new fence “cut through” his yard.

Tim filed suit to remove cloud and confirm title. The chancellor ruled that Tim had failed to prove all of the elements of adverse possession, and Tim appealed.

In Hoover v. Callen, decided by the COA on March 25, 2014, the court affirmed. Justice Irving, for the court:

¶15. “To acquire property by adverse possession, a claimant must show that [his] possession of the property was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for a period of ten years.” Id. at (¶14) (citing Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005)). “The chancellor must find that the plaintiff[] proved each element of [his] claim by clear and convincing evidence.” Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 669 (¶7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong, 904 So. 2d 134, 136 (¶16) (Miss. 2004)). “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.” Id. at 670 (¶10) (citing Apperson v. White, 950 So. 2d 1113, 1118 (¶12) (Miss. Ct. App. 2007)).

The court went on to find that the evidence supported the chancellor’s conclusion that Mayo and Tim had used the land with permission, and that, as a result, Tim’s claim of adverse possession was defeated.

A plaintiff brought an adverse possession case in my court in which he had gained occupancy of the property via a lease in the early 1980’s. He paid only a few months of rent before stopping his payments entirely, due to inadequacy of the dwelling, he claimed. After a couple of years he moved a mobile home onto the property. The title owner never initiated an action to evict him, although he did send an emissary on one occasion to inquire about whether the plaintiff intended to pay rent. I ruled that the occupancy was permissive, and, therefore, there was no adverse possession. I dismissed the case, and the plaintiff appealed. His appeal was dismissed for failure to prosecute, so we will not be getting any guidance from the appellate courts on the facts in this particular case.

The questions posed by the case that I had are two-fold: (1) If the landlord does not take any action to oust the defaulting tenant for more than ten years, has the landlord waived his right to claim permissive use by the tenant; and (2) What notice or other action on the part of a tenant may overcome the permissive use defense and convert the use to a hostile one? I did not find any Mississippi authority on point.

What is the SOL for an Action to Cancel a Deed Procured by Fraud?

March 11, 2014 § 7 Comments

SOL is a vernacular phrase that means, essentially, that one has run out luck, or words to that effect. SOL is also an acronym for Statute of Limitations. Both mean the same thing.

Statutes of limitation (SOL) are, by definition, statutory creatures of the legislature. In our state, there is a general three-year SOL for most actions, including those based on fraud. And, there is a ten-year SOL to recover land.

So, which SOL applies to an action to cancel a deed procured by fraud?

That was the question before the MSSC in the case of Lott and Saulters v. Saulters, decided January 23, 2014, in which Ralph Saulters filed suit to cancel Brenda Lott’s deed from their mother, Frances, based on fraud, and Brenda and her mother sought a dismissal based on SOL. Here is how Justice Chandler addressed the issue for the majority:

¶7. Brenda and Frances argue that Ralph’s claim for cancellation of Brenda’s deed falls under the general, three-year statute of limitations because it alleges fraud. This requires us to address the question of whether an action to cancel a deed that was fraudulently conveyed falls under the three-year statute of limitations governing actions based on fraud, or if it falls under the ten-year statute of limitations governing actions to recover land. We hold that, where a plaintiff alleging a possessory interest in the land brings an action to clear title or to recover land obtained by fraudulent conveyance, that action is governed by the ten-year statute of limitations.

¶8. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code Sections 15-1-7 and 15-1-9. In relevant part, Section 15-1-7 provides:

A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

Miss. Code Ann. § 15-1-7 (Rev. 2012) (emphasis added). Similarly, Section 15-1-9 provides:

Miss. Code Ann. § 15-1-9 (Rev. 2012). A suit to remove a cloud on title is considered an action to recover land. O’Neal Steel, Inc. v. Millette, 797 So. 2d 869, 873 (Miss. 2001).

¶9. Unlike the legislatures of most states, our Legislature has not created a statute setting a shorter limitations period on actions to recover land obtained by fraud; in fact, Section 15-1-9 states that actions to recover land based on fraud will have a ten-year statute of limitations:

A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity. However, in every case of a concealed fraud, the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which the fraud shall, or, with reasonable diligence might, have been first known or discovered.

Miss. Code Ann. § 15-1-9 (Rev. 2012) (emphasis added).

¶10. We have twice applied the ten-year statute of limitations in cases where fraud was alleged in an action to recover possession of real estate. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 748 (1905), overruled on other grounds by Kennedy v. Sanders, 90 Miss. 524, 539-40, 43 So. 913, 915 (1907); Aultman v. Kelly, 109 So. 2d 344, 349 (Miss. 1959). In Jones, we explained–in the context of an action to recover land–that to take advantage of the concealed-fraud provision of Section 15-1-9 quoted above, plaintiffs must allege “that complainants did not discover or know of this fraud over 10 years before instituting their suit.” Jones, 85 Miss. 802, 38 So. 742, 748 (1905) (emphasis added). Likewise, in Aultman, where heirs sought to cancel a mineral deed they alleged was procured from their father by fraud, we stated that the heirs “were required to institute a suit within ten years from the accrual of their right.” Aultman, 109 So. 2d 344, 349 (Miss. 1959).

¶11. We disagree with the Fifth Circuit’s interpretation of Mississippi law on this issue in Suthoff v. Yazoo County Industrial Development Corporation, 722 F. 2d 133 (5th Cir. 1983). [Footnote omitted] In it, the Fifth Circuit applied a three-year statute of limitations to an action where the plaintiffs alleged that they were fraudulently induced to sell land under the auspices that their property would be condemned. Suthoff, 722 F. 2d 134-35 (5th Cir. 1983). The court acknowledged that “the ten-year period for the recovery of land has been applied in two actions in Mississippi to set aside conveyances allegedly procured by fraud,” but noted that no Mississippi court had decided “the precise issue [of] whether such an action is governed by the statute relating to actions for fraud or the statute relating to actions to recover land.” Id. at 137.

¶12. In applying the shorter statute of limitations, the Fifth Circuit followed the rule used by the majority of states. We decline to follow this majority rule, because, as mentioned above, the Mississippi Legislature, unlike the majority of states, has not created a statute setting a shorter period of limitation on actions to recover land on the grounds of fraudulent conveyance. A case from Utah, cited in Suthoff as support for this majority rule, explains the majority rule and illustrates why it should not be the rule in Mississippi given our current statutory scheme:

The legislature of this state, as in nearly all other states, has seen fit to fix a shorter period of limitation upon actions for relief upon the ground of fraud or mistake than for recovery of possession of real estate. This is for the very cogent reason that a person claiming to have been defrauded or to have been induced to enter into a contract by mistake should not be permitted to allow a great length of time to elapse after discovery of the fraud or mistake before instituting his suit . . . .

Davidsen v. Salt Lake City, 95 Utah 347, 81 P.2d 374, 376-77 (1938) (emphasis added).

¶13. Because our Legislature has not created a law shortening the time to bring an action to recover a fraudulent conveyance, and because our current statutory law imposes a ten-year statute of limitations for actions to recover land based on fraud, we decline to adopt the majority rule. We hold that, where a plaintiff alleging a possessory interest is seeking to regain title to land lost by a fraudulent conveyance, or to clarify his own title clouded by fraudulent conveyance, the action still falls under the ten-year statutes applying to actions to recover land, despite the presence of allegations of fraud. [Fn 3]

[Fn 3] We note that an action to cancel a fraudulent conveyance can fall under the three-year statute of limitations where the plaintiff does not allege a possessory interest in the land. See O’Neal Steel, Inc. v. Millette, 797 So. 2d 869 (Miss. 2001), holding that the three-year statute applied where a plaintiff-creditor sought to cancel a deed the defendant-debtor conveyed to a third party in order to avoid a judgment lien. We further note that today’s decision overrules McWilliams v. McWilliams, 970 So. 2d 200 (Miss. Ct. App. 2007), in which the Court of Appeals erroneously applied the reasoning of Millette, incorrectly applying the three-year statute where a plaintiff sought to recover land he allegedly was fraudulently induced to convey.

All of the language quoted above is important, but Footnote 3 is extremely important to understanding how the two SOL’s apply in different situations involving cancellation of a deed. I also found it interesting that a COA decision was overruled in a footnote. Just goes to show that if you don’t read every word, you might miss something crucial.

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